Big tech accountability? Read how we got here in  The Closing of the Net 

Just as we in Europe are involved in a policy battle over the Internet and copyright, there is a similar battle taking place on the other side of the world around the Pacific Rim.  It is happening in the context of a trade agreement driven by the United States, and innocently entitled  the Trans-Pacific Partnership – or TPP. Buried deep within the TPP are proposals  that fulfil the wishlist of the American entertainment industries for ISPs to police copyrighted content.

The Trans-Pacific Partnership TPP is being negotiated between the United States and the governments of Australia, New Zealand,  Brunei Darussalam, Malaysia, Singapore, Vietnam , Chile and  Peru.

 The TPP contains a chapter on copyright  enforcement, with a clear focus on the Internet issues. As with ACTA (Anti-counterfeiting Trade Agreement), the TPP is being drafted by trade negotiators, behind closed doors. The TPP drafts are no available for public scrutiny. I’ve been following this now for a little while, and it is my understanding  that requests for the negotiators’ drafts have been refused.

 The final text will only be released when it has been agreed, and the governments will be under an obligation to comply.

 Hence, as with ACTA, the only information comes from leaked drafts. From what can be ascertained,  the enforcement chapter is structured in a similar way to ACTA. But the measures are more specific and quite draconian. The TPP clearly seeks to impose US-style enforcement measures onto the Pacific Rim countries, but also to extend the  law towards a tight liability on ISPs.

 If one is looking for similarity with the European experience, the current leaked TPP draft provides for :

legal incentives for service providers to cooperate with copyright owners in  deterring the unauthorized storage and transmission of copyrighted materials”

 That word ‘co-operation’ was identified in the EU  Telecoms Package as being a euphemism for ISPs taking action against websites or users. (See my book: The Copyright Enforcement Enigma )

 The TPP provides for rights-holders to get users’ personal data from ISPs. It is not clear whether the purpose would be for a court action, or for  3-strikes  measures, or both:

 Each Party shall establish an administrative or judicial procedure enabling  copyright owners who have given effective notification of claimed  infringement to obtain expeditiously from a service provider information  in its possession identifying the alleged infringer.

 The TPP provides for US-style limitation of liability,  based on a notice and action system, which seems to be similar to that being proposed in the IPRED review:

 expeditiously removing or disabling access to the material residing  on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from  which the infringement was apparent, such as through effective notifications of claimed infringement

 Even though some of the countries involved   - New Zealand and Chile - have put forward alternative proposals, it is almost certain that the US will drive through what its industries want.

 In the TPP, the US has found a group of compliant governments, most of whom will depend on the US in some way. Australia has been bullied by the US government for many years, and the Australian government always seems to give in. (For detail on Australian-US relations, you should read the work of the investigative journalist  John Pilger).

 The reason that Europe might be concerned about the TPP is that it threatens to act as a precedent. Once in place, if these measures are agreed, the US entertainment industries will hold it up as an example of what can be done, and will use it as another lever to pressure the EU and member state governments. Where governments or industry are weak, those will be the pressure points. It would be better for this to be thrashed out now.


Read more on  the TPP information website set up by  Public Knowledge


You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to Media and Academics – please cite as Monica Horten, Why Europe should be concerned about the Trans-Pacific Partnership (TPP),  19 April 2012 Commercial users - please contact me.

Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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States v the 'Net? 

Read The Closing of the Net, by me, Monica Horten.

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Copyright Enforcement Enigma launch, March 2012

In 2012, I presented my PhD research in the European Parliament.


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